from the United States District Court for the Western
District of Michigan at Marquette. No. 2:15-cr-00031-1-Paul
Lewis Maloney, District Judge.
Elizabeth A. LaCosse, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Marquette, Michigan, for Appellant.
N. Bobee, UNITED STATES ATTORNEY'S OFFICE, Marquette,
Michigan, for Appellee.
Before: CLAY, ROGERS, and SUTTON, Circuit Judges.
SUTTON, CIRCUIT JUDGE.
enforcement arrested Eric Verwiebe for brandishing a knife,
threatening to kill tribal police officers, and resisting
arrest. He pleaded guilty to assaulting a federal officer
with a dangerous weapon. The district court sentenced him as
a career offender due to his prior federal convictions for
assault with a dangerous weapon and assault resulting in
serious bodily injury. Because each crime combines common law
assault with an additional element that, together, indicate
"the use, attempted use, or threatened use of physical
force, " both of them amount to "crimes of
violence" under § 4B1.2(a) of the Sentencing
Guidelines. We affirm his sentence.
August 22, 2015, the Bay Mills Tribal Police Department
broadcast a lookout notice for Verwiebe after it received a
report that he had assaulted his girlfriend. When two
officers located Verwiebe, he pulled a knife from his
waistband, raised it over his head, and threatened to kill
the officers. The officers tried to subdue him, but Verwiebe
fought back. The officers eventually got control of him with
the help of a bystander. In the police car, Verwiebe
continued to threaten the officers and even spat on them.
pleaded guilty to assaulting, resisting, or impeding a
federal officer with a dangerous weapon. He was scored as a
career offender under U.S.S.G. § 4B1.1 based on his
prior federal convictions for (1) assault with a dangerous
weapon with intent to do bodily harm, 18 U.S.C. §
113(a)(3), and (2) assault resulting in serious bodily
injury, 18 U.S.C. § 113(a)(6). At sentencing, the
district court found that each conviction qualified as a
crime of violence under U.S.S.G. § 4B1.2(a)(1). Verwiebe
fresh review to a district court's construction of the
Guidelines, and we apply the version in effect on the date
the defendant was sentenced, in this instance the November
2016 Manual. 18 U.S.C. § 3553(a)(4)(A)(ii).
Guidelines raise the base offense level for career offenders.
U.S.S.G. § 4B1.1. A defendant is treated as a career
offender if he has at least two prior felony convictions for
a crime of violence. Id. § 4B1.1(a). A crime of
violence includes "any offense under federal or state
law, punishable by imprisonment for a term exceeding one
year, that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of
another." Id. § 4B1.2(a). Known as the
"elements clause, " this provision mirrors an
analogous clause in the Armed Career Criminal Act, and we
typically read them in the same way. See United States v.
Rede-Mendez, 680 F.3d 552, 555 n.2 (6th Cir. 2012). Both
clauses apply only to offenses that require "violent
force-that is, force capable of causing physical pain or
injury to another person." Johnson v. United
States, 559 U.S. 133, 140 (2010) (emphasis omitted).
offense sets out a single set of elements to define a single
crime, as all parties agree is the case here, it is
indivisible. Mathis v. United States, 136 S.Ct.
2243, 2248 (2016). In evaluating an indivisible offense, we
apply the categorical approach. That means we look only to
the statutory definition of the offense rather than to the
facts underlying the conviction to determine whether it
counts as a crime of violence. See Taylor v. United
States, 495 U.S. 575, 600 (1990). We focus on the least
culpable conduct criminalized by the statute but resist
imagining unlikely crimes that theoretically could be covered
by it. There must be a realistic probability the statute
would be used to criminalize the conduct. Moncrieffe v.
Holder, 133 S.Ct. 1678, 1684-85 (2013).
now consider each prior conviction in turn.
U.S.C. § 113(a)(3). Within the territorial
jurisdiction of the United States, it is a federal crime to
commit "[a]ssault with a dangerous weapon, with intent
to do bodily harm." 18 U.S.C. § 113(a)(3). Section
113(a)(3) entails the "use, attempted use, or threatened
use of physical force" under § 4B1.2(a). Because
§ 113 does not define "assault, " courts give
the term its established common law meaning. See United
States v. Turley, 352 U.S. 407, 411 (1957). That means
an individual may violate § 113 by (1) willfully
attempting to inflict injury on another person or (2)
threatening to inflict injury on another person, causing a
reasonable apprehension of immediate bodily harm. United
States v. Hathaway, 318 F.3d 1001, 1008 (10th Cir.
2003). If a crime already includes some use or threat of
physical force, as is true here, the use of a dangerous
weapon transforms that force into the type of violent force
necessary to constitute a crime of violence. See United
States v. Rafidi, 829 F.3d 437, 446 (6th Cir. 2016).
Section 113(a)(3) thus involves violent force because it
proscribes common law assault with a dangerous weapon, not
simple common law assault. United States v. Harris,
853 F.3d 318, 322 (6th Cir. 2017).
U.S.C. § 113(a)(6). Section 113(a)(6) is similar.
It proscribes "[a]ssault resulting in serious bodily
injury" within the territorial jurisdiction of the
United States. Under Johnson, we limit crimes of
violence to those involving force capable of causing physical
pain or injury. Whether § 113(a)(6) qualifies is a
question that answers itself: How would it be possible to
suffer serious bodily injury without force capable of
producing such injury? Our precedent says as much, holding
that crimes requiring proof of serious physical injury